Special Judge NIA Sunit Gupta today granted bail to PDP leader Waheed ur Rehaman Parra who was arrested by National Investigation Agency (NIA) for allegedly conspiring with Hizbul Mujahedeen militants to get their support during the 2019 parliamentary elections.
While granting bail, Special Judge NIA Sunit Gupta directed applicant is ordered to be admitted to bail, subject to furnishing the surety bond to the tune of Rs. 1.00 lac and personal bond of the like amount. The aforesaid liberty granted to the present applicant Waheed –ur-Rahman Para shall be subject to the following conditions that he shall not leave the UT of J&K without prior written permission of this court during the period of bail ; He shall not approach any of the prosecution witnesses with the purpose to win them over; and he shall not commit any offence during the period of interim bail. He shall surrender his Passport with the Investigating Officer of NIA against proper receipt.
Court further ordered that in violation of any of the above referred terms and conditions, I.O is at liberty to approach this court for the cancellation of bail of the applicant/accused. Superintendent District Jail Ambphalla is directed to release the applicant accused Waheed—ur-Rehman Para forthwith, if he is not involved in other FIR/Case.
While granting bail. Court observed that from the bare perusal of the aforesaid provision, which has equipped the Investigating Agency with a right to further investigate into the offence even after presentation of the charge sheet in the case, clearly conveys that the supplementary charge sheet, if at all, to be presented on the basis of the further investigation, the said charge sheet should be on the basis of the further evidence, oral or documentary, collected by the Investigating Agency during the course of further investigation after the presentation of the earlier charge sheet. This provision do nowhere, allow the Investigating Agency to use the old evidence collected during the investigation of the earlier charge sheet for arraying of additional accused in the case.
As it is observed in the present case, the investigating agency is intending to use the same statement of accused Naveed Mushtaq against the present applicant Waheed Para, which was recorded during the initial investigation of the case, alleging inter-alia that the present accused Waheed Para was giving financial support to the Terrorist Organization for the purpose and with intention to do the terrorist activities. If we go by the statement of the accused Naveed Mushtaq, the purchase of AK-47 Rifles out of Rs.10.00 lac, financed by applicant Waheed Para, was not the decision of the present applicant Waheed Para but it was the decision of the accused Naveed Mushtaq to utilize that money for the purchase of arms & ammunitions. Therefore, we cannot link the present applicant with the commission of offence of supporting the Terrorist Organization.
Court further observed that as this Court had observed earlier, the aforesaid evidence against the present applicant Waheed Para was already available with the Investigating Agency and even his Call Detail Recording (CDR) with the accused Davinder Singh on the relevant dates were also available with the Investigating Agency during the investigation of the original charge sheet but the Investigating Agency probably found the said evidence insufficient to implicate the present applicant Waheed Para as an ‘accused’ in the case, therefore, they have deliberately not arrayed the present applicant as an accused in the said case and even the name of the present applicant was not reflected in the list of the accused persons, who were not charge sheeted but the investigation with respect to those persons is pending in the present case. Therefore, a serious doubt has been arisen on the action taken by the Investigating Agency with respect to the present applicant/accused.
It is also pertinent to mention here that ld. Spl. PP NIA has shown the statement of one protected witness, which was recorded after the arrest of the present accused with the purpose to convince this court for the complicity of the present applicant in the case in hand. From the bare perusal of the statement of the said protected witness, it could reveal that the said witness had narrated some antecedents of the present applicant/accused with respect to his political career as well as his closeness with the prominent political persons of Kashmir Valley. He has also disclosed about the fact that the present applicant/accused Waheed Para had financed some of the Terrorists Outfit including HM. But even from his statement nothing substantial has been made out against the present applicant for the commission of offence as alleged against him.
Court found that the offences, particularly, falling under Unlawful Activities Act are not prima facie made out against the applicant/accused, as such, the rigorness in grant of bail under the provision of Section 43D(5) of UA(P) Act shall not be attracted in this case.
Court further observed that Spl. PP NIA has taken another plea that Mr. P.N Raina, Senior Advocate, who is appearing on behalf of the applicant/accused in the instant bail application, was in fact appointed as Special Public Prosecutor-cum- Standing Counsel in the High Court of J&K and NIA Special Court, Srinagar for conducting the cases instituted by the National Investigation Agency in the trial courts and in appeal/revisions. Though, Sh. P.N. Raina Sr. Advocate had tendered resignation from his such appointment, which was accepted by MHA vide Notification No. 2514(E) Dated 28th July 2020, yet the proprietary demands that he must not accept the brief against NIA. He has also referred the rules of Bar Counsel of India, made under section 49(1)(C) of Advocate Act 1961. While pointing out Rule 33, he has submitted that an advocate, who has at any time, advised in connection with the institution of a suit, appeal, or other matter, or has drawn pleadings, or acted for a party, shall not appear or plead for the opposite party. I just fail to understand, how Rule 33 is likely to debar Mr. P.N. Raina, Sr. Advocate to appear in the present case. It is not the case of NIA that Mr. P.N. Raina had at any time advised their Investigating Agency in the present case, particularly, with respect to the present accused Waheed Para. Infact, till the disengagement of Mr. P.N. Raina Sr. Advocate, the name of Waheed Para was not at all, surfaced as accused in the present case. Therefore, the question does not arise that he had ever made his suggestion or advised to NIA with respect to the present accused. As such, Court strongly dispel the objections taken by NIA in this context. JNF